BREAKING: Judge denies John Doe prosecutors’ move to dismiss civil rights suit

Part 41 of 41 in the series Wisconsin’s Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – Eric O’Keefe’s civil rights lawsuit against prosecutors in a Democrat-driven John Doe probe into conservative targets will go on after a federal judge on Tuesday denied the defense’s motion to dismiss the litigation.

Judge Rudolph Randa of the U.S. District Court Eastern District of Wisconsin in Milwaukee pointedly rejected the points of the motion, pushing aside the argument by the prosecutors-turned-defendants that federal courts generally must abstain from taking up federal constitutional claims that involve or call into question ongoing state proceedings.

DENIED: A federal judge on Tuesday denied a motion by prosecutors in a politically charged John Doe investigation to dismiss a civil rights case against them.

The John Doe investigation, a multi-county secret probe into dozens of conservative groups, including conservative political activist O’Keefe and his Wisconsin Club for Growth, “does not fit into any of the categories” for abstention, the judge wrote in his decision.

“It is an investigatory process, not an ongoing criminal prosecution case,” Randa said.

O’Keefe and the Club are suing Milwaukee County District Attorney John Chisholm, his assistant DAs, Bruce Landgraf and David Robles, the probe’s special prosecutor, Francis Schmitz, shadowy investigator, Dean Nickel, and retired appeals court Judge Gregory A. Peterson, the presiding judge in the John Doe.

The complainants charge that the investigation is nothing more than a partisan witch hunt bent on punishing Republican Gov. Scott Walker and his allies for conservatives’ political successes, such as public-sector collective bargaining reform, despised by the left. More so, the investigation, featuring what have been described as “paramilitary-style predawn raids” on the homes and properties of conservatives, has deprived the targets of their fundamental constitutional rights, particularly abridging the First, Fourth and Fourteenth amendments.

As the court document notes, “O’Keefe alleges that this investigation is being conducted for the primary purpose of intimidating conservative groups, impairing their fundraising efforts, and otherwise preventing their participation in the upcoming election cycle.”

O’Keefe has asked the court to shut down the John Doe, on the grounds that it is an abuse of prosecutorial power and infringes upon his right to freedom of speech.

The office of Chisholm, a Democrat, launched the investigation in August 2012, targeting conservative organizations on suspicion of illegal campaign coordination with Walker’s campaign during Wisconsin’s partisan 2011 and ’12 partisan recall drives.

Peterson earlier this year quashed multiple subpoenas issued in the probe, saying they failed to show probable cause.

In his ruling, Randa asserts that Wisconsin’s unique John Doe proceedings, which are like a grand jury investigation without the oversight of a jury of peers, is an investigatory device.

It is “not so much a procedure for the determination of probable cause as it is an inquest for the discovery of crime in which the judge has significant powers” Randa wrote in the ruling.

“It is an investigatory process, not an ongoing criminal prosecution or civil enforcement proceeding. Nor is it a proceeding – like a civil contempt order,” Randa wrote.

The John Doe may be a criminal investigation, but it is not “akin to a criminal prosecution,” the judge notes. Therefore, it doesn’t fit under the long-held rules that federal courts must not interfere with state prosecutions.

Besides, Randa said he would not abstain even if the investigation fit into one of the abstention categories, because the “John Doe proceeding does not offer O’Keefe the opportunity to adjudicate the federal constitutional issues that are raised in this lawsuit.”

“The underlying theory of this case is that O’Keefe, along with other conservative groups, are being targeted for their political activism, whereas the ‘coordination’ activities of those on the opposite side of the political spectrum are ignored,” the judge wrote. O’Keefe’s complaint points to numerous examples of similar coordinating campaign activities among liberals that failed to trigger a lengthy, secret investigation by the Milwaukee County DA.

“The alleged bogus nature of the prosecutors’ theory of criminal liability as a matter of federal constitutional law is simply more evidence of the defendants’ bad faith,” Randa wrote. “Even if the need for injunctive relief somehow fell by the wayside, the merits of O’Keefe’s claims can and should still be adjudicated here in federal court.”

Randa, citing case law, which notes “the guarantee of free expression is always an area of particular federal concern,” said the court “will not sidestep its duty to exercise jurisdiction in this context.”

While the investigation lingers on, the lawsuit claims, the first amendment rights of O’Keefe and the Club are effectively frozen – all for an investigation that the targets assert has overstepped its prosecutorial bounds.

“We are pleased with the judge’s excellent decision, and we’re looking forward to proceeding with this case,” said David Rivkin, O’Keefe’s attorney.

Contact M.D. Kittle at mkittle@watchdog.org

Rob Port is the editor of SayAnythingBlog.com, a columnist for the Forum News Service, and host of the Plain Talk Podcast which you can subscribe to by clicking here.

Top